{1}
The United States Supreme Court recently held that (1) a law
enforcement officer may require a warrantless alcohol breath
test from a person who is arrested for driving while
intoxicated (DWI) from alcohol because a breath test is a
reasonable search incident to arrest, but (2) an officer
cannot require a warrantless blood test unless the officer
has probable cause to require the blood test and demonstrates
exigent circumstances. Birchfield v. North Dakota,
U.S.,, 136 S.Ct. 2160, 2184-86 (2016). Thus, under
Birchfield, a person who is arrested for DWI may be
punished for refusing to submit to a breath test under an
implied consent law, but may not be punished for refusing to
consent to or submit to a blood test under an implied consent
law unless the officer either (a) obtains a warrant, or (b)
proves probable cause to require the blood test in addition
to exigent circumstances.

{2}
In this case, defendant Laressa Vargas consented to and
submitted to two breath tests, but refused to consent to a
blood test. The arresting officer did not obtain a warrant
for a blood test, nor could he do so under New Mexico law,
because he did not have probable cause to believe that Vargas
had committed a felony or caused death or great bodily injury
to another person while driving a motor vehicle under the
influence of alcohol or a controlled substance as required by
NMSA 1978, Section 66-8-111(A) (2005). Vargas was convicted
of violating NMSA 1978, Section 66-8-102(D)(3) (2010, amended
2016) because she refused to submit to a blood test; she
received a sentence of ninety days in jail, with credit for
seventy-five days for time served.

{3}
The Birchfield opinion had not been decided when the
Bernalillo County Metropolitan Court entered its judgment
convicting Vargas; however, Birchfield was published
while Vargas's appeal was pending before the New Mexico
Court of Appeals. The Court of Appeals applied
Birchfield and reversed Vargas's conviction for
aggravated DWI. See State v. Vargas, 2017-NMCA-023,
¶¶ 2, 26, 389 P.3d 1080. We granted the State's
petition for writ of certiorari to consider whether the Court
of Appeals erred in applying Birchfield. State
v. Vargas, 2016-NMCERT- (No. S-1-SC-36197, Feb. 14,
2017). We conclude that the Court of Appeals correctly
applied Birchfield to the pending appeal because of
a person's fundamental right under the Fourth Amendment
of the United States Constitution not to be subjected to
unreasonable searches, and because Birchfield
prohibits punishment under implied consent laws based on an
arrestee's refusal to consent to and submit to a
warrantless blood test. See Birchfield, U.S. at, 136
S.Ct. at 2160, 2186.

I.FACTUAL AND PROCEDURAL BACKGROUND

{4}
On April 23, 2011 at approximately 1:00 a.m., Bernalillo
County Deputy Sheriff Patrick Rael was part of a force
conducting a DWI checkpoint on Coors Boulevard in Albuquerque
when he encountered Vargas. As Vargas approached the
checkpoint, she stopped fifteen to twenty yards before she
reached where Deputy Rael was standing, and Deputy Rael waved
his flashlight to get her attention to indicate that she
should move forward. Vargas then rolled down her window and
said "good afternoon, " which Deputy Rael found
odd, given the time of night.

{5}
Deputy Rael immediately noticed the odor of alcohol emanating
from both Vargas's person and her vehicle. He also
observed that Vargas's eyes were bloodshot and watery.
Deputy Rael asked Vargas if she had been drinking, to which
she answered that she had not. She explained that she was the
designated driver for her passenger, who had been drinking.
Deputy Rael described Vargas as "confused" and
"nervous."

{6}
Deputy Rael requested that Vargas submit to field sobriety
tests (FSTs), and Vargas agreed. Vargas performed poorly on
the FSTs. At that point Deputy Rael believed that Vargas was
intoxicated and could not safely operate a vehicle, so he
placed her under arrest.

{7}
Deputy Rael read the pertinent provisions of the New Mexico
Implied Consent Act to Vargas, after which she agreed to a
breath test. Vargas provided two breath test samples, which
resulted in readings of 0.04 at 1:33 a.m. and 0.05 at 1:35
a.m. Because he believed that the breath test results were
inconsistent with Vargas's signs of impairment, Deputy
Rael determined that a blood test was the only other means to
confirm Vargas's intoxication, particularly because he
suspected that drugs were the cause of her impairment. Deputy
Rael then reread the Implied Consent Act to Vargas and
explained that he was entitled to ask her for both a breath
test and a blood test. He subsequently asked Vargas to submit
to a blood test, and she agreed to do so. Deputy Rael wanted
to verify Vargas's answer, so he asked her again if she
was willing to submit to a blood test. Deputy Rael explained
that the possible consequences of refusing the blood test
included an aggravated sentence and license revocation.
Vargas refused to take the blood test the second time she was
asked, and she was subsequently charged with aggravated DWI.

{8}
At the conclusion of the bench trial, the metropolitan court
determined that the State had proved beyond a reasonable
doubt that Vargas drove while she was under the influence of
alcohol to the slightest degree.[1] It also concluded that
officers have the discretion to request breath tests, blood
tests, or both, and that Vargas's refusal aggravated the
underlying DWI. The metropolitan court sentenced Vargas to a
term of ninety days in jail for aggravated DWI under Section
66-8-102(D)(3) (2010), which provides that

[a]ggravated driving under the influence of intoxicating
liquor or drugs consists of: refusing to submit to chemical
testing, as provided for in the Implied Consent Act, and in
the judgment of the court, based upon evidence of
intoxication presented to the court, the ...

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